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By Peter Gillon and Reed Rubinstein |
In his op/ed in the February 2005 issue of Brownfield News, Reed Rubinstein wrote that Superfund is out of sync with today’s realities. (Read it at www.brownfieldnews.com.) This article offers an opinion on what the brownfield industry should say about it.
EPA has suggested a national dialogue over the future of Superfund, and the brownfield industry should have a pivotal voice in the conversation. The key question, then, is what will the industry have to say? In our view, these four points should be considered:
1: Shift the Purpose to Brownfields
First, Superfund’s primary purpose should become brownfield remediation
and redevelopment. Superfund’s present liability scheme drives lenders
and investors away from contaminated urban and industrial properties.
Congress has gradually increased funding for federal brownfield redevelopment grants to state and local government, but these grants are a drop in the bucket. A combination of liability reform, more funding and fewer bureaucratic layers are needed to spur redevelopment.
For example, serious consideration should be given to radically restructuring the Superfund program, redirecting the bulk of program funds into state remediation block grants. States, not EPA, should set specific local remedial and redevelopment priorities. There is ample precedent for such an approach — the federal Clean Water Act block grant program provides a workable paradigm.
2: Reinvigorate EPA’s Enforcement
Authority
Second, EPA’s enforcement authority should be reinvigorated, and laser-focused
on companies that duck their responsibilities, for example, by “warehousing”
contaminated sites to avoid paying for cleanup.
Current enforcement practices have created an uneven competitive playing field, effectively penalizing companies affirmatively meeting their legal obligations. Enforcement policy should be recast to ensure a company that closes a plant or shifts production overseas, not the community, bears the environmental costs of past operations.
At the same time, a redeveloper who volunteers to remediate and redevelop a brownfield using site-appropriate risk-based corrective action environmental standards should be given liability immunity (if the cleanup is performed properly) and offered transparent economic, tax or other incentives, as the best of the state brownfield programs now do. Enforcement and incentives must be linked — one without the other simply does not work.
3: Update the Science
Third, the regulatory process for setting remediation priorities, and for determining
the risk posed by a site, needs to be clarified and streamlined. The science
of human health risk assessment — and our understanding of the risks demonstrably
posed by environmental contamination — has advanced considerably in 25
years.
Superfund was written in an environment of fear, at a time when very little
was known about the nature or extent of the risk posed by hazardous substances,
and when site remediation was a cipher. Since 1980, EPA, the states, and the
private sector have made huge collective advances in toxicology, risk assessment
and remedial design and implementation. However, Superfund has not been rewritten
to reflect these changes.
For example, the scoring system for ranking contaminated sites has not been changed in almost 15 years. At least two EPA risk assessment models have been pulled from EPA’s Web site because the agency no longer believes those models meet its own information quality regulations.
Depending on which EPA database is consulted, widely contradictory numerical values for chemical properties can be found assigned to the same chemical, even within the same database.
Given the sheer volume of technical data, some errors are inevitable. Nevertheless, action must be taken to ensure EPA’s science is current. Sound science, based on quality data, must be the touchstone of environmental decision-making.
4: Administer Remediation the
Right Way
Fourth, environmental remediation, particularly of the “orphan”
and “mega-sites” now in EPA’s inventory, should generally
be administered and funded like any new highway or water treatment plant public
works project. For far too long, environmental remediation has been complicated
by fruitless, counter-productive and wasteful litigation.
The “polluter pays” principle should be preserved, but legislative steps can and should be taken to simplify and speed up Superfund’s remedy selection and implementation phases, and to ensure that the liability scheme efficiently channels dollars toward the resolution of true public health needs.
The brownfield industry is especially well-suited to make Superfund relevant again. Through the lens of circa-1979 science and politics, Superfund does not look bad at all. But then, those were the days when disco was believed to be a meaningful musical genre.
Superfund needs be revamped to account for a quarter-century of empirical experience and to reflect the advances of sound science. Public health and the environment are too important for the program to be left in its present state.
Reed D. Rubinstein is a senior member and Peter Gillon is a principal in the environmental practice of Greenberg Taurig LLP, in Washington, D.C. This article is the opinion of the authors and does not necessarily represent the views of Greenberg Taurig LLP or Brownfield News